Amicus Curiae Brief — Sause v. Bauer, 138 S. Ct. 2561 (2018) (No. 17-742)

No. 17-742

In The

Supreme Court of the Anited States

oe

MARY ANNE SAUSE,

Petitioner,

Vv.

TIMOTHY J. BAUER, et ai.,

Respondents.

e

¥

On Petition For Writ Of Certiorari

To The United States Court Of

For The Tenth Circuit

WILLIAM R. PETERSON ALLYSON N. Ho

LYNNE N. POWERS Counsel of Record

MorGAN, Lewis & JAMES D. NELSON

Bocktus LLP MORGAN, LEwIs &

1000 Louisiana Street, Bockius LLP

Suite 4000 1717 Main Street, Suite 3200

Houston, Texas 77002 Dallas, Texas 75201

T. 713.890.5000 T. 214.466.4000

F. 713.890.5001 F. 214.466.4001

allyson.ho@morgan!lewis.com

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800) 226-6964

WWW COCKLELEGALBRIEFS.COM

.

TABLE OF CONTENTS

Page

, FT, fe, SERRE aes ueeenasean i

TABLE OF AUTHORITIES .................<c0cce000000000 ii

INTEREST OF AMICI CURIAE ..............0.c000000- 1

SUMMARY OF ARGUMENT .................c0-0000000000 3

RE liristsctictiteintscemnviiciipabiensninddiniicinetc 4

I. This Court’s Review Is Needed To Resolve

A Serious Conflict With This Court’s Cases

That Threatens Vital Law-Enforcement

Il. Permitting The Tenth Circuit’s Decision

To Stand Would Undermine Vital Law-

Enforcement Objectives....................cc00000 10

CF eascneccsecrsescssensiesevenesseneesentenvereneenen 14

ii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)................. 6

Graham v. Connor, 490 U.S. 386 (1989)..................... 13

Harlow v. Fitzgerald, 457 U.S. 800 (1982).................... 4

Hope v. Pelzer, 536 U.S. 730 (2002) ............cccccccccceeee 5,6

O’Lone v. Estate of Shabazz, 482 U.S. 342

CIDE TIIE Picani shieciistiaieninsisinndibsebansitibitiainniannititadntipegnabasiinetnenntees 11,12

Pearson v. Callahan, 555 U.S. 223 (2009) .......... 3, 6,13

Safford Unified Sch. Dist. No. 1 v. Redding, 557

eee CIE certdecersetistentaitioesarustisdiaiinnsilianibinnastiinansemnciieriin 7

Salahuddin v. Goord, 467 F.3d 263 (2d Cir.

I nTt laionscecathaenb neetioaieibaiacietahidbiiainennbaiatacianiibidindiininimnoneioni 12

Salazar-Limon v. City of Houston, 137 S. Ct.

re ee 4

Tolan v. Cotton, 134 S. Ct. 1861 (2014) ......0..eeee 5

Turner v. Safley, 482 U.S. 78 (1987) .............ccccccceceeees 12

United States v. Lanier, 520 U.S. 259 (1997) ....... 5, 6,7

White v. Pauly, 137 S. Ct. 548 (2017).............0000000000 6,7

RULES

SPN COUP TRUE 87. ..0..000ccvccevecoveresverssccszsesecsseeses 1

ee ee BNE SD vincricicicceceeiecttnehsccienianiiatnciiaininaionieiis 1

iii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Edwin Meese III & John Malcolm, Policing in

America: Lessons from the Past, Opportuni-

ties for the Future, HERITAGE FOUND. (Sept.

18, 2017), http://www. heritage.org/crime-and-

justice/report/policing-america-lessons-the-past-

opportunities-the-future ................ccccceeeeeeeeeeenens

Edwin Meese III & John Malcolm, Solutions for

Policing in the 21st Century, HERITAGE FOUND.

(Sept. 21, 2017), http://www. heritage.org/crime-

and-justice/commentary/solutions-policing-the-

PoLice EXECUTIVE RESEARCH FORUM, CONSTITU-

TIONAL POLICING AS A CORNERSTONE OF COMMU-

NITY POLICING (Apr. 2015), -.-" daamemaneead

Reauthorization of the Civil Rights Div. of the

U.S. Dep’t of Justice: Hearing Before the Sub-

committee on the Constitution of the Commit-

tee on the Judiciary House of Representatives,

109th Cong. 3 (2005), https://www.usdoj.gov/

crt/speeches/acosta_2005_oversight.pdf.............

Page

seasons 9

iv

TABLE OF AUTHORITIES— Continued

Page

U.S. Dep’r or Justice Cmty. RELATIONS SERV.,

COMMUNITY RELATIONS SERVICES TOOLKIT FOR

POLICING: GUIDE TO CRITICAL ISSUES IN POLIC-

ING, https://www.justice.gov/crs/file/8364 16/

download (last visited Dec. 14, 2017)..................... 13

U.S. Dep’r or Justice CmtTy. RELATIONS SERV.,

COMMUNITY RELATIONS SERVICES TOOLKIT FOR

POLICING: IMPORTANCE OF POLICE-COMMUNITY

RELATIONSHIPS AND RESOURCES FOR FURTHER

READING, https://www.justice.gov/crs/file/836486/

download (last visited Dec. 2, 2017)....................... 10

U.S. Dep’t or JUSTICE, PRINCIPLES OF Goop Po.

LICING: AVOIDING VIOLENCE BETWEEN POLICE

AND CiTizENs (Sept. 2003), https://www.

justice.gov/archive/crs/pubs/principlesofgood

policingfinal092003. pdf..................csccccccseceseceeneeenenenees 7

1

INTEREST OF AMICI CURIAE'

Amici curiae are former federal prosecutors

who have extensive familiarity with the needs of

law enforcement and the challenges faced by law-

enforcement officers in interacting with the public.

They recognize the important role that qualified im-

munity plays in permitting reasonable police officers

to exercise difficult judgments without fear of civil lia-

bility. They also recognize the important limits that

this Court has drawn on qualified immunity, limits

which reassure the public that officers who act in

knowing disregard of the public’s constitutional rights

will be held liable for abuses.

Amici file this brief to emphasize that legitimate

law-enforcement interests will not be undermined by

denying qualified immunity based on the allegations

in petitioner’s complaint. To the contrary, reaffirming

that officers who interfere with prayer for the purpose

of harassment face civil liability will promote respect

for the rule of law and strengthen relationships be-

tween the police and the public, ultimately easing the

task of law enforcement.

' The parties in this case received timely notice under Rule

37.2(a) and have consented to the filing of this brief. Pursuant to

Supreme Court Rule 37.6, counsel for amici represent that this

brief was not authored in whole or in part by counsel for a party

and that none of the parties or their counsel, nor any other person

or entity other than amici, their members, or their counsel, made

a monetary contribution intended to fund the preparation or sub-

mission of this brief.

2

Amici listed below urge this Court to grant the

petition for certiorari and reverse the Tenth Circuit’s

judgment.

Edwin Meese III served as the 75th Attorney

General of the United States from 1985 to 1988. He

previously served as Counselor to the President and

was a member of the National Security Council. He

also previously worked in the District Attorney’s Office

of Alameda County, California, where he prosecuted

felony cases. He currently sits on the National Advi-

sory Board of the Center for Urban Renewal and Edu-

cation and is a Distinguished Visiting Fellow with the

Hoover Institution at Stanford University.

Matthew Orwig served as the U.S. Attorney for

the Eastern District of Texas for six years. He previ-

ously served as a Legal Advisor in the Executive Office

of U.S. Attorneys and as an Assistant U.S. Attorney in

the Northern District of Texas. He served a total of

three Presidents and five Attorneys General in the De-

partment of Justice.

Richard Roper served as the U.S. Attorney for

the Northern District of Texas, leading an office of 93

attorneys in criminal and civil matters. He previously

served as Assistant U.S. Attorney and as Assistant Dis-

trict Attorney in Fort Worth, Texas—spending 26 years

in these three positions. He has personally prosecuted

more than 150 jury trials involving a broad range of

crimes.

Joseph Russoniello served two terms as the U.S.

Attorney for the Northern District of California.

3

Before that, he served as an Assistant District Attor-

ney for the City and County of San Francisco and as a

Special Agent with the Federal Bureau of Investiga-

tion. He also served on the U.S. Attorney General’s Ad-

visory Committee at the Department of Justice.

+

-

SUMMARY OF ARGUMENT

Just as the application of qualified immunity to of-

ficers who reasonably believed their conduct to be per-

missible is essential to allowing law enforcement to

take discretionary actions without fear of liability,

Pearson v. Callahan, 555 U.S. 223, 244 (2009), denial of

qualified immunity and imposition of civil liability

where appropriate is important to aid law-enforcement

objectives by encouraging public trust and cooperation

with legitimate law-enforcement investigatory efforts.

This Court’s review is needed to make clear that in

cases like this one—where the constitutional violation

is obvious—affording qualified immunity can actually

hinder legitimate law-enforcement interests by strain-

ing the relationship between the public and the police.

In this case, the Tenth Circuit held that officers

could reasonably believe that if interfering with prayer

is justified in some circumstances, then interfering

with prayer must be permissible in all circum-

stances—even if it is done solely for purposes of har-

assment. But the conclusion does not follow. Even if

officers could permissibly interfere with prayer in

some circumstances, no reasonable officer could

4

believe it permissible to interfere with prayer solely for

purposes of harassment. And it is hardly surprising

that no case has ever held—or had to hold—as much.

If permitted to stand, the Tenth Circuit’s decision

threatens to upset the careful balance this Court has

struck in its qualified-immunity precedent and to un-

dermine vital law-enforcement objectives. The petition

should be granted.

e

-—

ARGUMENT

I. This Court’s Review Is Needed To Resolve

A Serious Conflict With This Court’s Cases

That Threatens Vital Law-Enforcement In-

terests.

Denying qualified immunity when officers violate

“clearly established * * * constitutional rights of which

a reasonable [officer] would have known,” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982), is just as im-

portant to law enforcement as granting qualified im-

munity when a right is unclear. See Salazar-Limon v.

City of Houston, 137 S. Ct. 1277, 1283 (2017) (So-

tomayor, J., dissenting from denial of certiorari) (“The

erroneous grant of summary judgment in qualified-im-

munity cases imposes no less harm on society as a

whole, than does the erroneous denial of summary

judgment in such cases.” (internal quotation marks

and citations omitted)). That is so because erroneous

grants of qualified immunity undermine the rule of

law and strain the relationship between police and the

public, hindering law enforcement in fulfilling its

5

responsibilities. Regrettably, this is just such a case.

This Court’s review is needed to correct the error, re-

solve the conflict with this Court’s cases, and restore

the proper relationship between law enforcement and

the public.

As an initial matter, this Court has firmly rejected

any “rigid gloss on the qualified immunity standard”

that would require “the facts of previous cases [to] be

‘materially similar’ to” the case at hand. Hope v. Pelzer,

536 U.S. 730, 739 (2002); see also Tolan v. Cotton, 134

S. Ct. 1861, 1866 (2014). But that is precisely what the

Tenth Circuit required here. App. 8a-10a (holding that

petitioner could “only satisfy the clearly-established

prong by citing a case or cases that make clear ‘the vi-

olative nature of [the defendants’) particular con-

duct,’” i.e., “interruptling] their investigation to order

[her] to stop [praying] so that they can * * * briefly har-

ass her before * * * issuing a citation” (first alteration

in original)). The Tenth Circuit thus concluded that

while respondents’ conduct “may be obviously unpro-

fessional, we can’t say that it’s ‘obviously unlawful.’”

App. Ya.

But this Court has held that “general statements

of the law are not inherently incapable of giving

fair and clear warning,” and there are “general consti-

tutional rule(s] * * * [that can] apply with obvious clar-

ity to the specific conduct in question.” United States

v. Lanier, 520 U.S. 259, 271 (1997); see also Hope, 536

U.S. at 741 (“[O}fficials can still be on notice that their

conduct violates established law even in novel factual

circumstances|.|”). Cases involving “fundamentally

6

similar” or “materially similar” facts are “not neces-

sary” for every reasonable officer to know of certain

constitutional rights. Hope, 536 U.S. at 741.

This approach—i.e., permitting general rules to

give fair and clear warning that officers’ conduct is im-

permissible—is important because the most obvious

and egregious constitutional violations will be least

likely to be committed by police officers and thus least

likely to be discussed in the case law. Lanier, 520 U.S.

at 271 (explaining that “[t)he easiest cases don’t even

arise,” but “it does not follow that if such a case arose,

the officials would be immune” (citation omitted)).

This Court thus holds that the “very action in question”

need not have “been held unlawful” previously for an

officer to be held liable. Anderson v. Creighton, 483 U.S.

635, 640 (1987). Any other rule would threaten to im-

munize the very worst violations. Regrettably, that is

what the Tenth Circuit has done here. And in such

cases, granting qualified immunity disserves citizens

and law enforcement alike.

The holding below upsets the balance this Court

has struck in its qualified immunity jurisprudence,

which “is important to ‘society as a whole.’” White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (citation

omitted). “Qualified immunity balances * * * the need

to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson, 555 U.S. at

231. It strikes this balance by ensuring officials “rea-

sonably can anticipate when their conduct may give

7

rise to liability,” Lanier, 520 U.S. at 270, so they need

not second-guess every discretionary action they take,

while also prohibiting officers from “knowingly vio-

latling] the law.” White, 137 S. Ct. at 551 (citation

omitted).

Perversely, under the Tenth Circuit’s approach,

qualified immunity would immunize the most flagrant

constitutional violations—those that are so far outside

the norm they infrequently arise. This concern is not

merely theoretical. Often, the “easiest cases don’t even

arise” because “outrageous conduct” such as the con-

duct here “obviously will be unconstitutional.” Safford

Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377

(2009). The behavior described in petitioner’s com-

plaint is a perfect example. As Chief Judge Tym-

kovich’s concurrence recognized, that behavior is

nothing short of “reprehensible” and demonstrates “ex-

traordinary contempt of a law abiding citizen.” App.

17a. Immunizing such conduct serves no legitimate

law-enforcement interest.

To the contrary, immunizing egregious behavior

can harm those interests by communicating to the pub-

lic that officers may violate the law with impunity.

This message is just the opposite of what the public

should understand: “The police must not only respect,

but also protect the rights guaranteed to each citizen

by the Constitution.” U.S. Dep’t or JUSTICE, PR'™IPLES

OF GOOD POLICING: AVOIDING VIOLENCE BETWEEN

8

POLICE AND CITIZENS (Sept. 2003). Public confidence

in law-enforcement officials fulfilling their duty to re-

spect and protect the public’s constitutional rights is

critical for effective law enforcement. See POLICE Ex-

ECUTIVE RESEARCH FORUM, CONSTITUTIONAL POLICING

AS A CORNERSTONE OF COMMUNITY POLICING 3 (Apr.

2015)° (“It is impossible for law enforcement agencies

to form positive and productive relationships with the

communities they serve if those communities do not

trust” them or if they “do not believe that the police see

their mission as protecting civil rights as well as public

safety.”).

This cognizance is essential to build public trust

in law-enforcement actions and motives. The public

trust, in turn, is necessary for effective policing. Public

distrust of police leaves both good officers and “Ameri-

cans, particularly those living in low-income communi-

ties and minority communities, more at risk.” Edwin

Meese III & John Malcolm, Solutions for Policing in the

21st Century, HERITAGE Founp. (Sept. 21, 2017)‘; see

also Edwin Meese III & John Malcolm, Policing in

America: Lessons from the Past, Opportunities for the

Future, HERITAGE Founp. (Sept. 18, 2017)° (identifying

® Available at https://Awww,justice.gov/archive/crs/pubs/principles

ofgoodpolicingfinal092003. pdf.

° Available at https://ric-zai-inc.com/Publications/cops-p324-

pub. pdf.

* Available at http://www.heritage.org/crime-and-justice/

commentary/solutions-policing-the-21st-century.

® Available at http//www.heritage.org/crime-and-justice/report/

policing-america-lessons-the-past-opportunities-the-future.

9

“the breakdown in trust” between citizens and police

officers—“which in turn reduces citizen cooperation”—

as one of “the most pressing problems that law enforce-

ment agencies face today”); ibid. (statement of Garry F.

McCarthy, former Superintendent, Chicago Police De-

partment) (“police cannot do their job without * * * un-

derstanding” and “trust”).

Immunizing egregious officer behavior, however,

can only increase tensions between citizens and law

enforcement. See Reauthorization of the Civil Rights

Div. of the U.S. Dep’t of Justice: Hearing Before the

Subcommittee on the Constitution of the Committee on

the Judiciary House of Representatives, 109th Cong. 3

(2005) (prepared statement of R. Alexander Acosta, As-

sistant Attorney General for the Civil Rights Division,

Department of Justice)® (“[I|t is of the utmost im-

portance that officers obey the very laws that they en-

force. The public must have the trust that no one,

including a law enforcement officer, is above the law.

Thus, failing to hold officers to account for their con-

duct, and allowing that trust to be undermined, would

make the job substantially more difficult.”).

“Strong relationships of mutual trust between po-

lice agencies and the communities they serve are crit-

ical to maintaining public safety and effective policing

** * * (Clommunity members’ willingness to trust the

police depends on whether they believe that police ac-

tions reflect community values and incorporate the

® Available at https://www.usdoj.gov/crt/speeches/acosta_2005_

oversight. pdf.

10

principles of procedural justice and legitimacy.” U.S.

Dep’t oF JUSTICE CMTY. RELATIONS SERV., COMMUNITY

RELATIONS SERVICES TOOLKIT FOR POLICING: IMPOR-

TANCE OF POLICE-COMMUNITY RELATIONSHIPS AND RE-

SOURCES FOR FURTHER READING 1.’ This trust between

law enforcement and the community can be as fragile

as it is important. And “ijn some cases, a perceived

egregious act ci misconduct by a single officer in one

city not only damages police-community relationships

locally; it can gain nationwide attention and reduce

trust of the police generally.” Jbid. Granting immun-

ity to such egregious acts is sure to decrease public

trust and confidence in police, which affirmatively

harms law-enforcement interests. This Court’s review

is needed to vindicate these vitally important interests

in this case.

Il. Permitting The Tenth Circuit’s Decision

To Stand Would Undermine Vital Law-En-

forcement Objectives.

According to the allegations in petitioner’s com-

plaint—which must be credited at this stage in the pro-

ceedings—the officers in this case actually interrupted

their legitimate investigation to “order [her] to stop”

praying “so that they [could] * * * harass her.” App. 8a;

see also App. 13a (officers “order|ed| her to stand up

and stop praying so they [could] harass her”). No one

disputes that legitimate law-enforcement objectives

’ Available at https://www.justice.gov/crs/file/836486/download

(last visited Dec. 2, 2017).

11

may permit—or even require—a police officer to order

a citizen to cease praying. The narrow (but exceedingly

important) issue presented in this case is whether of-

ficers who interfere with prayer for the sole purpose of

harassment are entitled to qualified immunity—

simply because no case has ever held that they cannot.

Amici readily acknowledge that law-enforcement

officers must be able to fulfill their duties free from un-

necessary interference. But declining to immunize

conduct that intrudes on religious expression solely for

the purpose of harassment does not risk any such in-

terference. Here, the Tenth Circuit thought that it was

not obviously unlawful for officers to command a per-

son to stop praying for the purpose of harassment

solely because police officers could command a subject

to “stand up and direct his or her attention to the of-

ficer{s]” for the purpose of continuing their investiga-

tion. App. 9a. But the legality of law-enforcement

actions routinely turns on why an officer took an ac-

tion, i.e., whether there was any justification for it.

Reasonable officers would understand that merely be-

cause an action may be justified in some circumstances

does not mean that the action is justified in all circum-

stances.

For example, when evaluating whether prison of-

ficials can legally interfere with a prisoner’s right to

pray, courts routinely consider the justification for the

prison officials’ actions. See O’Lone v. Estate of

Shabazz, 482 U.S. 342, 353 (1987) (holding that it was

reasonable for officials to prohibit prisoners from leav-

ing work to attend religious services for safety

12

purposes when the prison lacked adequate employee

resources); Turner v. Safley, 482 U.S. 78, 87 (1987)

(holding that the analysis depends on whether the gov-

ernment action “is ‘reasonably related’ to legitimate

penological objectives, or whether it represents an ‘ex-

aggerated response’ to those concerns”); see also Sala-

huddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)

(denying “[s)}ummary judgment on the basis of quali-

fied immunity” because “it was clearly established law

at the time of the alleged violations that religious ex-

ercise may not be denied without any reason”). Thus,

in the prison context, law-enforcement officers cannot

interfere with prayer unless the interference “is rea-

sonably related to legitimate penological interests.”

O’Lone, 482 U.S. at 349; Salahuddin, 467 F.3d at 274.

It would be odd, to say the least, to afford citizens like

petitioner /ess constitutional protection in their own

homes than prisoners enjoy while incarcerated. But

that is the unfortunate result of the Tenth Circuit’s

holding.

It is enough, in this case, that the officers ordered

petitioner to stop praying with no justification whatso-

ever—the allegations belie any concerns for officer

safety or any legitimate law-enforcement objectives

that petitioner’s prayer interfered with. Far from hin-

dering law enforcement, allowing a suspect to engage

in a moment of reflection—including prayer—can as-

sist officers in accomplishing a peaceful resolution to a

tense encounter, thereby decreasing the risks to offic-

ers and the public. As this Court has recognized, en-

counters between police and citizens can often involve

13

tense and rapidly evolving situations. See generally

Graham v. Connor, 490 U.S. 386 (1989). De-escalating

these situations benefits both law enforcement and the

public. As the Department of Justice explained, “the

best approach * * * is usually to slow the situation

down, so that the officer has more time to * * * assess

the situation * * * and formulate a plan for de-escalat-

ing the situation.” U.S. Dep’t or Justice CmTy. RELA-

TIONS SERV., COMMUNITY RELATIONS SERVICES TOOLKIT

FOR POLICING: GUIDE TO CRITICAL ISSUES IN POLICING 4-

5.°

In contrast, immunizing officers who interfere

with prayer solely to harass a citizen serves no legiti-

mate law-enforcement purpose—if anything, it under-

mines that vital purpose. This Court’s review is

needed to restore the balance this Court has struck in

its qualified-immunity cases between “the need to hold

public officials accountable when they exercise power

irresponsibly and the need to shield officials from har-

assment, distraction, and liability when they perform

their duties reasonably.” Pearson, 555 U.S. at 231.

@

¥

* Available at https://www.justice.gov/crs/file/8364 1 6/download

(last visited Dec. 14, 2017).

14

CONCLUSION

The petition for writ of certiorari should be

granted, and the judgment of the Tenth Circuit re-

versed.

December 20,2017 Respectfully submitted,

ALLYSON N. Ho

Counsel of Record

JAMES D. NELSON

MorGAN, LEwis & Bockius LLP

1717 Main Street, Suite 3200

Dallas, Texas 75201

T. 214.466.4000

F. 214.466.4001

allyson.ho@morganlewis.com

WILLIAM R. PETERSON

LYNNE N. POWERS

MorGan, LEwis & Bockius LLP

1000 Louisiana Street, Suite 4000

Houston, Texas 77002

T. 713.890.5000

F. 713.890.5001